Mabry v. Tarver

• Decision Date: 31 December 1839
• Citation: 20 Tenn. 94
• Parties: MABRY et al. v. TARVER.
• Court: Tennessee Supreme Court

20 Tenn. 94

MABRY et al.

v.TARVER.

Supreme Court of Tennessee.

December, 1839.

The facts of the case are as follows: Thibbets, the trustee of Wilson county, made a motion against Benjamin S. Mabry and his securities, in the circuit court of Wilson county, on October 17, 1839, A. J. Marchbanks presiding, for a failure on the part of said Mabry to pay over, according to law, the balances of the taxes by him collected as sheriff of Wilson county for the several years of 1838 and 1839.

The trustee produced the following bond to the court: “State of Tennessee, Wilson county. Know all men by these presents, that we, B. S. Mabry,” etc., “all of the State and county aforesaid, are held and firmly bound unto Silas Tarver, chairman of the county court of said county for the time being, and his successors in office, for the use of said county, in the sum of ten thousand dollars, to the payment of which we bind ourselves well and truly to be made, we bind ourselves, our heirs, executors, and administrators jointly and severally and firmly by these presents, sealed with our seals and dated the 5th day of March, 1838. The conditions of the above obligation are that whereas the above bound B. S. Mabry has been duly and constitutionally elected sheriff and collector of public taxes for said county of Wilson for two years from the first Saturday, 1838, now, if the said Mabry shall well and truly collect all county taxes within said county which by law he ought, and well and truly account for and pay over all taxes by him collected, or which ought to be collected, to the county trustee of said county on the 1st days of October in the years 1838 and 1839 respectively, then the above obligation to be void, otherwise to remain in full force and virtue.”

The trustee produced proof of the appointment of commissioners, according to law, to take the lists of polls and taxable property for the years 1838 and 1839 respectively, of the return duly of the lists, and of the levying of the taxes by a competent court. It was admitted by the defendants that the aggregate amount of assessed taxes for the county in the year 1838 was $3,723, and for the year 1839 $2,377.12 1/2, and that these had been reduced by payments, leaving a balance unpaid for the year 1838 of $523, and for the year 1839 of $1,234.49, in the hands of the sheriff.

The clerk of the county court of Wilson county testified that he made out certified copies of the tax lists for the years 1838 and 1839, and that he delivered a certified copy of the tax list of 1838 to the sheriff, Mabry, before the time required by law had expired. He also testified, with regard to the tax lists of 1839, that a transcript thereof was made out in due time, and that the sheriff was notified of the fact of their readiness. It also appeared that a portion of the moneys in the hands of the sheriff, for the recovery of which this motion was made, was the sums assessed by the county court for the license of keeping jacks and stallions and for the exhibition of shows.

Upon these facts the circuit court rendered judgment against the said Mabry and his securities upon their penal bond for the amount of the deficiencies for the years 1838 and 1839, amounting in all, together with 12 1/2 per cent. damages, to the sum of $1,977.01 1/2. From this judgment the defendants obtained an appeal in the nature of a writ of error to the supreme court at Nashville.

Hall, for plaintiffs in error, contended:

1. That the tax upon the keeping stallions and jacks, and upon the exhibition of shows, was unconstitutional, and, being illegally collected, the sheriff rightfully refused the payment of it to the county of Wilson.

2. That the statute requires that the bond should be taken in double the amount of the assessed taxes. This was less than double the amount assessed. No motion will lie upon a statutory bond unless the statute requirements in regard thereto are strictly complied with. 4 Yerg. 155;5 Id. 297.

3. That the bond in this case was taken for two years, and that there should, by a fair construction of the statute of 1835, ch. 15, have been for each year a separate bond.

Attorney General and R. L. Caruthers, for the defendant in error, cited Act of 1835, ch. 15, secs. 1, 5; Kincannon v. Carroll, 9 Yerg. 82.

Reese, J., delivered the opinion of the court.

This was a motion in the circuit court for Wilson county against the...